686 F.

2d 110

Paul B. DUDLEY, Petitioner-Appellant,

v.
Stephen DALSHEIM, Superintendent, Downtown Correctional
Facility; and Robert Abrams, Attorney General of
the State of New York, Respondents-Appellees.
No. 1330, Docket 81-2399.
Second Circuit.
Argued July 14, 1982.
Decided Aug. 9, 1982.
As Amended Oct. 12, 1982.

Phylis Skloot Bamberger, The Legal Aid Society, Federal Defender

Services Unit, New York City, for petitioner-appellant.
Donna Krone, Asst. Dist. Atty., New York City (Robert M. Morgenthau,
Dist. Atty. for New York County, and Mark R. Dwyer, Asst. Dist. Atty.,
New York City, of counsel), for respondents-appellees.
Before CARDAMONE and WINTER, Circuit Judges, and MALETZ,
Judge of the United States Court of International Trade.*
PER CURIAM:

On August 13, 1974 appellant Paul B. Dudley was convicted of murder in New
York State Supreme Court following a jury trial. Government eye-witnesses
who knew Dudley testified that appellant approached the victim, and without
provocation aimed a gun directly at his head at close range and pulled the
trigger. Dudley's sole defense was one of alibi. Two defense witnesses implied
that he was elsewhere at the time of the shooting. The intent of the killer was
not a defense issue because appellant claimed he was not even present. The trial
judge twice instructed the jury, inter alia, that a person is presumed to intend
the natural and probable consequences of his acts.

Defense counsel did not object to this charge at trial nor on direct appeal. The
issue of the impropriety of the charge was first raised by appellant in a post-

judgment motion to vacate his conviction which was filed with the New York
Supreme Court in November, 1979. The motion was denied, partly on the
ground that claimed errors in the trial court's charge should have been raised on
direct appeal. Appellant then filed a petition for a writ of habeas corpus in the
United States District Court for the Southern District of New York in which he
contended that the charge denied him his right to a fair trial. The District Court,
526 F.Supp. 88 denied the petition and Dudley appeals from that determination.
3

Appellant, admittedly failed to raise at trial or appeal the error he now claims
concerning the jury instruction, in conformity with state procedural law.
Consequently the alleged error in the charge was not considered on its merits
and, therefore, may not be reviewed by the federal courts on a petition for
habeas corpus. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d
594 (1977).

Dudley asserts that he should be excused from the Sykes rule because he can
demonstrate cause for his failure to comply with state law and actual prejudice
resulting from the alleged constitutional violation. See Sykes, 433 U.S. at 87,
90-91, 97 S.Ct. 2497, 2508-2509, 53 L.Ed.2d 594. He has shown neither.
Appellant claims that his attorneys' failure to challenge the charge at trial and
on direct appeal constitutes "cause." This argument was impliedly rejected by
our holding in Taylor v. Harris, 640 F.2d 1 (2d Cir.), cert. denied, 452 U.S. 942,
101 S.Ct. 3089, 69 L.Ed.2d 958 (1981). It is also contrary to the Supreme
Court's recent pronouncement that cause does not exist where one fails properly
to raise a constitutional issue in state court when federal case law (and here
state case law as well) provided the "tools" to construct such a claim. Engle v.
Isaac, --- U.S. ----, ---- - ----, 102 S.Ct. 1558, 1571-1574, 71 L.Ed.2d 783
(1982). Further, appellant cannot demonstrate actual prejudice resulting from
the intent charge because there was "strong uncontradicted evidence of (intent)
in the record," United States v. Frady, --- U.S. ----, ----, 102 S.Ct. 1584, 1595,
71 L.Ed.2d 816 (1982), which appellant did not dispute. See id. Since we deny
relief on procedural grounds, we need not reach or decide the merits of
appellant's claim that the state court trial judge's charge denied him a fair trial
under the rule laid down in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct.
2450, 61 L.Ed.2d 39 (1979).

Denial of appellant's petition is affirmed for the reasons stated above.

The Honorable Herbert N. Maletz, Judge of the United States Court of

International Trade, sitting by designation